IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON <~-i <-

STATE OF WASHINGTON, Respondent,

v. LARDELL COURTNEY, Appellant. No. 72032-5-1 DIVISION ONE

UNPUBLISHED OPINION FILED: February 17. 2015 t. ---

Spearman, C.J. — After stealing two bottles of liquor from a Safeway 

### store, Lardell Courtney first fled, then fought with pursuing loss prevention officers inthe store parking lot. Courtney was apprehended and subsequently convicted ofone count ofsecond degree robbery and one count of third degree 

### assault. The jury acquitted him of a second countof third degree assault. On appeal, he claims: (1) the assault merged with the robbery; (2) the crimes were the same criminal conduct; (3) the trial court's decision to entertainjuror 

### challenges inwriting at a sidebar conference violated the publictrial right and his right to be present at all criticalstages; (4) insufficientevidence supports his robbery conviction; and (5) ineffective assistance ofcounsel. We agree regarding merger and vacate his assault conviction. We remand forresentencing without 

### reaching his same criminal conduct argument. We reject his remaining claims. V? CONo. 72032-5-1/2
FACTS This case arises from a shoplifting incident that occurred on the evening of September 6, 2012, at a Tacoma, Washington Safeway store. The facts surrounding the incident were established at trial by the State's witnesses, Safeway loss prevention officers, Nathaniel Duval-lgarta and Axel EngelhardtParales. They are undisputed. On the night inquestion, Lardell Courtney entered the Safeway store and headed forthe liquor aisle. Once there, he placed two bottles of Hpnotiq liquor inside his pants and leftthe store without paying forthem. Undercover loss 

### prevention officer Duval-lgarta had been watching Courtney and, as Courtney exited the store, Duval-lgarta pursued him. When Duval-lgarta was withinabout 

### ten feet ofCourtney, the officer held up his badge, identified himself, and ordered Courtney to stop. Courtney fled and Duval-lgarta gave chase. Asecond loss prevention officer, Engelardt-Parales, joined the pursuit. When Duval-lgarta caught up to Courtney inthe parking lot, Courtney attempted, but failed, to punch him. Duval-lgarta used Courtney's forward 

### momentum to push him to the ground. As Courtney fell, the stolen bottles of 

### liquor, slipped from his pants. As Duval-lgarta and Courtney struggled on the ground Courtney climbed on top of the officer and struck him in the face. A moment later, Englehardt-Paralesjoined the fray and helped Duval-lgarta subdue Courtney. 

### Courtney was subsequently charged with one count ofsecond degree 

### robbery (count I) and two counts of thirddegree assault, one count each forNo. 72032-5-1/3 Duval-lgarta (count II) and Englehardt-Parales (count III). On October 25, 2012, the charging information was amended to add as an aggravating factor that 

### Courtney committed each offense shortly after being released from incarceration. Prior to jury selection the trial court directed counsel to exercise for cause challenges as follows: COURT: Ifthere are any causes that arise, challenges for cause that arise while you're talking tojurors, Iwould ask that 

### youjust stop and we'lldeal withthat outside the presence of otherjurors. Ifwe need to excuse them outside inthe hallway, we can do that; otherwise, we can take them up at the end of thejurorquestioning and prior to you doing your peremptory 

### challenges, executing any challenges for cause. PROSECUTOR: Your Honor, justto clarify, the cause 

### challenges you want us making at the time they arise? 

### COURT: Iwould just ask you call for a sidebar, and we can talk about it brieflyand then figure out what we're going to do to deal with it formally on the record. PROSECUTOR: Okay. COURT: Ifit's an obvious one, Imay, ifyou're doing the 

### questioning and it's a fairly obvious challenge, then I'll ask Mr. Shaw if he has any objection to excusing thatjuror,justto move things along ratherthan setting it out. Anyother procedural issues? 

### Verbatim Report ofProceedings (VRP) (01-23-13) at 4-5. Neither party objected to this procedure. After the prosecutorand defense counsel had questioned prospective jurors, the trial court called both attorneys, but not Courtney, to a sidebar conference. Later, the trial court indicated on the record that, during the 

### sidebar, the judge and attorneys had discussed dismissal of jurors 11 and 16for
cause. The State had objected to dismissal of juror 11, who was removedNo. 72032-5-1/4 

### because she worked for Safeway and, inthejudge's opinion, was potentially biased. Juror 16 was removed because the court questioned his ability to follow the instructions and keep an open mind. Jury selection continued and, just before the parties exercised their peremptory challenges, the trial court announced: COURT: Folks, you can sit back and relax. The attorneys will be making theirfinal selection here in writing and then when they're done, we willhave folks take thejury box. You can talk quietly between yourselves over anything otherthan this case. Okay? And [defense counsel], I'm going to turn offthe headset. [Judicial assistant] ifyou would do that.

(Offthe record while the attorneys are doing their peremptory challenges). 

### Supplemental (01/23/13) VRP at 47. The attorneys then exercised peremptory 

### challenges at sidebar resulting in the dismissal ofjurors 3 and 10. Subsequently, the court empanelled thejurors who had been selected to decide the case, plus two alternates. Afterthe sidebar conference, the court called thejurors who had been selected to hearthe case to thejury box and excused the remainingjurors. The trial court did not announce which jurors had been excused due to the 

### exercise ofperemptory challenges or which party had challenged them. Instead, the courtfiled a document listing the name and number ofeachjuror struck via a 

### peremptory challenge, the party exercising the challenge, and the order in which the challenge was used.No. 72032-5-1/5 At the close ofevidence, thejury convicted Courtney ofrobbery in the second degree (count I) and assault inthe third degree (count II). Thejury acquitted Courtney of assault inthe third degree as charged in count III. Thejury also found, via special verdict, that Courtney had committed the crimes charged in counts one and two shortly after being released from incarceration. Sentencing occurred on February 1, 2013. The State argued that, based on Courtney's prior 

### criminal history, he had an offender score of 10. Courtney disagreed with this calculation, arguing that his score was 9 because the current robbery and assault involved the same criminal conduct and should be treated as a single offense for 

### purposes of his offender score. The trial court did not conduct a "same criminal 

### conduct" analysis on the record, but nevertheless concluded that Courtney's offender score was "overten." VRP at 170. The court imposed an exceptional 

### sentence of 96 months on the robbery conviction (comprised of a highend 

### standard range sentence of 84 months plus an additional 12 months confinement based upon the aggravating factor) and a standard range sentence of 60 months forthe assault conviction, to be served concurrently. Courtney appeals. DISCUSSION Double Jeopardy 

### Courtneyfirstchallenges his convictions on doublejeopardy grounds, arguing that robbery in the second degree and assault in the thirddegree, as charged and proved in this case, merge and his conviction for both crimes violated the doublejeopardy provisions of the federal and state constitutions. We review this claim de novo. State v. Freeman. 153 Wn.2d 765, 770, 108 P.3d 753No. 72032-5-1/6 (2005).The doublejeopardy provisions ofthe federal and state constitutions "protect a defendantfrom being punished multiple times for the same offense." State v. Allen, 150 Wn. App. 300, 312, 207 P. 3d 483 (2009) (citing State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998)). When there are multiple punishments for the same conduct, the primary question is whetherthe 

### legislature intended that multiple punishments be imposed. Freeman, 153 Wn.2d at 771. The merger doctrine provides one basis for ascertaining legislative intent 

### not expressly stated orimplicitfrom the language of the statute.1 Id. at 772-73; State v. Vladovic. 99 Wn.2d 413, 422, 662 P.2d 853 (1983)). 

### As a general rule, the mergerdoctrine applies "where the Legislature has 

### clearly indicated that in order to prove a particulardegree of crime (e.g., first degree rape) the State must prove not only that a defendant committed that crime (e.g., rape) but that the crime was accompanied by an act which is defined

as a crime elsewhere inthe criminal statutes (e.g., assault or kidnapping)." State 

### v. Davis, 177 Wn. App. 454, 460-61, 311 P.3d 1278 (2013) review denied, 179 Wn. 2d 1025, 320 P.3d 719 (2014). In determining whether crimes merge, we do 

### not focus narrowly on the express designation of various degrees of a crime in the criminal statutes. Rather, we inquire as to the "manner in which the offenses

1The State suggests that because second degree robbery and thirddegree assault constitute separate offenses under the "same evidence'VBIockburqertest, we need not consider merger doctrine in determining whether a double jeopardy violation exists. See, Blockburqerv. United States. 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); State v. Calle. 125 Wn.2d 769, 777, 888 P.2d 155 (1995) ("same evidence" test). Because the "same evidence'VBIockburqer test is merely one of several means ofdetermining legislative intent to impose multiple punishments for the same offense, the argument is notwell taken. See, Freeman, 153 Wn.2d at 771.No. 72032-5-1/7



### are charged and proved in a particular case and whetherthe State was required to prove the act constituting the merging crime to elevate the othercrime."jd. at
463. Davis is instructive. The case involved a doublejeopardy challenge to 

### convictions for second degree kidnapping and second degree assault, arising from an incident inwhich the defendant abducted two victims at gunpoint. \± at 

### 460. The defendant in Davis argued that second degree assault merged with 

### second degree kidnapping because, as charged and proved by the State, the act constituting the assault—Davis pointing a gun at hisvictims—was the same act that constituted the threatened use ofdeadly force necessary to elevate unlawful 

### imprisonment underRCW 9A.40.040 to second degree kidnapping underRCW 9A.40.030. ]d, at 464. We agreed, holding that, though not specifically 

### designatedby statute as a lesser degree ofkidnapping, the crime ofunlawful imprisonment should be considered as suchfor purposes of mergeranalysis. Id
at 461. Our rationale was based on the fact that the two criminal statutes were 

### codified inconsecutive sections ofthe same chapter and, as charged and 

### proved, unlawful imprisonmentwas a lesser included offense ofkidnapping. We concluded thatthese factors indicated the legislature's intent not to impose multiple punishments underthe circumstances. 

### The present case is like Davis. It involves a crime—third degree theft— notspecifically designated as a lesserdegree of the charged crime—second 

### degree robbery, butcodified in the same chapter ofthe criminal code, chapter 9A.56 RCW. Also like Davis, in orderto elevate one crime to a greater one—No. 72032-5-1/8 here, third degree theftto second degree robbery—the State had to prove conduct that constituted a separate crime—assault. Accordingly, we conclude that where a charge ofassault elevates the crime oftheft to the crime ofrobbery, the merger doctrine may apply. The State contends that even ifthe merger doctrine generally applies in this circumstance, it is inapplicable on the facts ofthis case. The State argues 

### the robbery and the assault charge regarding Duval-lgarta are based on two separate acts of force. According to the State, the swing-and-miss while 

### Courtney and Duval-lgarta were both still standing was committed in an effort to retain the stolen bottles of liquor and thus supports the robbery charge, while the 

### successful punch was committed to evade lawful capture, and thus supports the 

### assault charge.2 Thus, the State contends it is evidentthatthe jury's verdicts as to each charge were based on separate acts. We disagree. Inorderto withstand a doublejeopardy claim, itmust be manifestly 

### apparentthat the jurybased each conviction on a separate act. State v. Mutch, 171 Wn.2d 646, 664, 254 P.3d 803 (2011). "Considering the evidence, 

### arguments, and instructions, ifit is notclearthat itwas 'manifestlyapparentto 

### the jurythat the State [was] not seeking to impose multiple punishments for the

same offense' and that each countwas based on a separate act, there is a 

### doublejeopardy violation. JU (quotingState v. Berg. 147Wn. App. 923, 931, 198 P.3d 529 (2008).

2To convict Courtney of thirddegree assaultthe State bore the burden ofproving that he assaulted a person with intent to prevent or resist lawful apprehension. RCW 9A.36.031(1)(a).

8No. 72032-5-1/9 Inthis case, thejurors were instructed, in relevant part, as follows: INSTRUCTION NO. 7 To convict the defendant ofthe crime of Robbery in the Second Degree as charged in Count I, each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: (1) That on or about the 6th day of September, 2012; the defendant unlawfully took personal property from the person or in the presence of another; (2) That the defendant intended to commit theft ofthe property; (3) That the taking was against that person's will by the defendant's use or threatened use ofimmediate force, violence orfear ofinjury to thatperson or to that person's property or to the person or property ofanother;

INSTRUCTION NO. 12 To convict the defendant ofthe crime ofAssault in the 

### Third Degree as charged inCount II, each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: 

### (1) That on or aboutthe 6th day ofSeptember, 2012, the defendant assaulted Nathaniel Duval;

INSTRUCTION NO. 18 An assault is an intentional touching or striking of 

### anotherperson that is harmful or offensive regardless of whetherany physical injury is done to the person. A 

### touching or striking is offensive ifthe touching or striking would offend an ordinary person who is not unduly sensitive. An assault is also an act done with intent to inflict bodily injury upon another, tending butfailing to accomplish it and accompanied with the apparentpresent 

### ability to inflictthe bodily injury ifnotprevented. It is not necessary that bodily injury be inflicted.No. 72032-5-1/10
An assault is also an act done with the intent to create in another apprehension andfear ofbodily injury, and which in fact creates in another a reasonable apprehension and imminentfear ofbodily injury even though the actor did not actually intend to inflictbodily injury. CP at 23, 28, 34 (emphasis added). As charged in this case, both the robbery and assault charges could be 

### proved by evidence that Courtney either used or threatened to use force. The State offered evidence that he did both, i.e., the successful punch and the swing

### and-miss. Because thejury instructions did not limitthejurors concerning which act related to which crime, they could have considered eitherthe swing-and-miss


### orthe successful punch in support ofeither. More importantly for our merger 

### analysis, given the ambiguity in the instructions, the jurors could have based both convictions on only one ofthe two acts. Underthe latter circumstances, conviction for both crimes violates doublejeopardy. 

### The State argues that Instruction No. 2 resolves this problem. Instruction No. 2 provides: 

### [a] separate crime is charged ineach count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count. CP at 18. The State contends that this instruction sufficiently informed thejury 

### that each crime required proof of a different act. But our Supreme Court struck 

### down this argument with regard to an identical instruction inMutch, 171 Wn.2d at 662-63 (agreeing with this court that, wherejury instructions "fail[ ] to include sufficiently distinctive 'to convict' instructions or an instruction that each count must be based on a separate and distinct criminal act," an instruction identical to

10No. 72032-5-1/11 Instruction No. 2 here "is not saving [because] it still fails to [ ]inform[ ] thejury that each 'crime' required proofof a different act."). The State also argues that any potential violation was cured by its closing 

### argument, during which the prosecutor asserted a distinction between the robbery and assault charges in this case based on the moment Courtney lost possession ofthe stolen bottles of liquor. He argued, "[w]e had the robbery that occurred while the defendant still had the bottles, and then we had two assaults that occurred afterthe bottles skidded across the pavement." VRP at 124. The 

### State claims the prosecutor made a clearelection of which act supported each charge, as is allowed in a multipleacts case. We disagree. 

### The prosecutor acknowledged thatthe struggle between Courtney and the officers "happened in the span ofmovements, not several minutes." VRP at 125. 

### This fact seriously undermines any attempt to separate the events of this case fromone ongoing crime and pursuit to three singular acts withdiscrete intents. Additionally, we cannot considerthe prosecution's election at closing in isolation. Mutch, 171 Wn.2d at 664; State v. Kier, 164 Wn.2d 798, 813, 194 P.3d 212, 

### (2008). The evidence presented to the jury regarding Courtney's intent after he lost the bottles was, at best, ambiguous. Thejury could reasonably infer from the 

### evidence that both his attempted and successful punches were committed with intent to retain stolen property or overcome resistance to the taking ofit, i.e., in 

### furtherance of the robbery. And, as previously discussed, the jury instructions did not specify which act of force related to which crime. While the prosecutor attempted to require this finding at the close of the trial, the jurywas properly

11No. 72032-5-1/12
instructed to base its verdict on the evidence and instructions and not on the arguments of counsel. Based on the totality ofthe record, we find that no clear election was made in this case. We, therefore, vacate Courtney's conviction for assault inthe second degree and remand for resentencing. See, State v. Weber, 159 Wn.2d 252, 269, 149 P.3d 646 (2006) (usual remedy for doublejeopardy violation is to vacate the offense carrying the lesser sentence). Public Trial Right Courtney also claims for the first time on appeal that the trial court's 

### decision to entertainjuror challenges in writing at a sidebar conference violated 

### his right to a public trial. The alleged error has not been preserved for review. Under RAP 2.5(a)(3), appellate courts will review an alleged manifest error 

### affecting a constitutional right even ifnot raised in the trial court. Sublett, 176Wn. 2d at 78. Generally, for relief to be granted, a defendant must show actual 

### prejudice resultingfrom the error. Id. However, "[violation of the publictrial right,
even when not preserved by objection, is presumed prejudicial to the defendant

on direct appeal." State v. Wise, 176Wn.2d 1, 16, 288 P.3d 1113 (2012). Thus, 

### the dispositive inquiry is whetherthe procedure adopted bythe trial court here impinged the public trial right. 

### Itis well settled thatthe public trial rightencompasses "'the 'voir dire' of 

### prospectivejurors who form the venire (comprising those who respond to the court's initialjury summons and who are notsubsequently excused administratively).'" State v. Slert. 181 Wn.2d 598, 605, 334 P.3d 1088, 1091

12No. 72032-5-1/13 (2014) (quoting State v. Wilson. 174 Wn. App. 328, 338, 298 P.3d 148 (2013));

see also, Preslev v. Georgia, 558 U.S. 209, 213-214, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010); Wise, 176 Wn.2d at 11. But our Supreme Court's public trial right

cases regardingjury selection have involved the actual questioning ofjurors. E.g., Wise, 176 Wn.2d at 11 -12; State v. Paumier, 176 Wn.2d 29, 35, 288 P.3d 1126 (2012). No Supreme Court case has held that the public trial right applies to 

### the dismissal ofjurors after questioning is over. Divisions II and III of this court have held that itdoes not. State v. Marks, Wn. App. _, 339 P.3d 196, 199 

### (2014) ("theexercise ofperemptory challenges is not part of voirdire"); State v. Dunn, 180 Wn. App. 570, 575, 321 P.3d 1283 (2014) rev, denied, 340 P.3d 223 (2015): State v. Love, 176 Wn. App. 911, 920, 309 P.3d 1209 (2013) (holding 

### that public trial rightdoes not attach to the exercise of for cause and peremptory 

### challenges during jury selection), rev. granted, Wn.2d , 340 P.3d 228 

### (2015). And we recently cited Marks, Dunn, and Love with approval inState v. Filitaula, Wn. App. , 339 P.3d 221 (2015), affirming a challenge procedure virtually identical3 to the one used here, holding that the exercise ofperemptory challenges inwriting as opposed to orally did not constitute a courtroom closure where "[t]he written form on which the attorneys wrote down their peremptory 

### challenges was kept and filed in the court record at the end of the case. It contained] the names and numbers ofthe prospectivejurors who were removed

3Although Filitaula involved challenges forcause rather than peremptory challenges, we see no basis to distinguish the procedures used ineach case based on the type ofchallenge at issue. Ineach case, the public and the defendant had the same right to scrutinize the jury selection process.

13No. 72032-5-1/14 by peremptory challenge, listfed] the order inwhich the challenges were made, and identified] the party who made them." ]d_, at 223. Based on this authority, we hold that the trial court's decision to conduct peremptory challenges at sidebarwas not a courtroom closure that implicated the public trial right. Courtney cannot establish there was a manifest error affecting the public trial right and, consequently, he may not raise the issue for the first time in this court. Sublett, 176 Wn.2d at 77; RAP 2.5(a)(3). Right to Be Present Courtney also claims for the first time on appeal that the trial court's 

### peremptory challenge procedure violated his due process right to be presentfor all critical stages of trial. Because Courtneyfails to establish manifest constitutional error, the issue has not been preserved for review. Sublett, 176 Wn.2d at 78; RAP 2.5(a)(3). 

### Courtneyfails to establish that the trial courtexcluded him from a critical 

### stage ofthe proceedings. Despite Courtney's arguments to the contrary, the courtroom was not closed during the sidebar conferences and Courtney was 

### undisputedly present inthe courtroom at the time. Courtney argues thatto be 

### "present" means to stand beside counsel during the sidebar conferences, but he offers no authority to supportthe argument. Moreover, even assuming, 

### arguendo, thatthe trial court improperly excluded Courtney from the sidebar conferences, he fails to establish that the alleged errorwas manifest because he has not shown that he was prejudiced by the process. Love, 176 Wn. App. at 920-21, is instructive. The case involved ajuror challenge procedure nearly

14No. 72032-5-1/15 identical to the one at issue here. Like Courtney, the defendant in Love 

### challenged the procedure based on his due process right to be present. We affirmed, noting thatthe defendant had been present beside his attorney during the information gathering phase of voir dire and had apparent opportunity to 

### consultwithcounsel and provide input on whetherto challenge any ofthe 

### prospective jurors. ]d_. at 921. We also noted that, because the defendant had succeeded in his cause challenges at the sidebar conference, "he simply [could 

### not] show how he was prejudiced by the procedure. Hisdue process claim therefore [was] not manifest error." Id. Likethe defendant in Love, Courtney was present inthe courtroom during 

### voir dire and, presumably, had ample opportunityto discuss the relative 

### qualification and desirability of eachjuror. Defense counselparticipated in the discussionregarding for cause challenges and exercisedperemptory challenges at sidebarconferences following voir dire. Each ofcounsel's asserted challenges

was successful.4 Like the defendant in Love, Courtney cannot show that he was 

### prejudiced by the challenge procedure in this case. 

### Courtney contends that the mere opportunityto consultwith counsel 

### regarding thedismissal of jurors isinsufficientto cure aviolation ofhis rightto be present. He cites our SupremeCourt's languagein State v. Irbvthat"[e]ven if '[djefense counsel hadtime to...consult him regarding excusing some ofthe jurors ifthey chose to do so," as the State suggests...'where...personal presence
4We also note that, although initiated by the judge, one of the cause challenges was favorable toCourtney and over the objection of the State and the other was not objected to by either party.

15No. 72032-5-1/16 is necessary in point of law, the record must show the fact.'" 170Wn.2d 874, 884, 246 P.3d 796 (2011) (quoting Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 36 L.Ed. 1011 (1892)). But Irbv is distinguishable. The case involved

an e-mail exchange between the trialjudge and counsel, during which the parties 

### discussed, among otherthings, the dismissal for cause of fourjurors. Id. Our Supreme Court expressly noted thatthe timing ofthe emails made it unlikelythat defense counsel consulted with Irby regarding their contents: 

### As noted above, Irbywas not present during this discussion because he was in his jail cell. Furthermore, because the trial 

### judge sent his initial e-mail at 1:02 p.m., and Irby's attorneys replied at 1:53 p.m., it is unlikelythatthe attorneys spoke to Irbyabout the email inthe interim. \± In contrast, here, the relevant communications occurred in open court 

### immediatelyfollowing voirdire, duringwhich Courtney was presumably seated next to his attorney at counsel table, observing questioning ofprospectivejurors and listening to the trialjudge announce his chosen method for taking juror 

### challenges. Underthese circumstances, it is highly unlikely that Courtney did not consultwith his attorney regarding possible challenges prior to the sidebar conference. Thus, the present case is unlike Irby. 

### Because Courtney's due process claim is notbased on manifesterror, he 

### cannot pursue itfor the first time in this court. Sublett, 176Wn.2d at 78; RAP 2.5(a)(3).

16No. 72032-5-1/17
Statement ofAdditional Grounds In a statement ofadditional grounds, Courtney challenges the sufficiency ofthe evidence supporting his robbery conviction. We review insufficient evidence claims for whether, when viewing the evidence in the light most favorable to the State, any rational trier offact could have found the essential 

### elements ofthe charged crime beyond a reasonable doubt. State v. Yarbrough, 151 Wn. App. 66, 96, 210 P.3d 1029 (2009). Sufficiency challenges admit the truth ofthe State's evidence and all reasonable inferences drawn from it. Id. 

### To prove robbery in the second degree, the State had to establish beyond

a reasonable doubt that Courtney used or threatened the use ofimmediate force, 

### violence, orfear ofinjury and thatthe force orfear was used to obtain or retain 

### possession of the property or to prevent orovercome resistance to the taking. RCW 9A.56.190, .210. Taken inthe lightmost favorable to the State, the 

### testimony of loss prevention officers Duval-lgarta and Engelhardt-Parales was more than sufficient to allowthejury to reasonably conclude that, while fleeing the store with two stolen liquor bottles, Courtney swung his closed fist at Duval

### lgartain an attempt to retainpossession of the stolen property. This evidence is sufficient to supportthe challenged element ofCourtney's robbery conviction. 

### Courtney also claims he received ineffective assistance of counsel at trial. We review this claim de novo. State v. Cross, 156 Wn.2d 580, 605, 132 P.3d 80 

### (2006). Toestablish ineffective assistance he must show that (1) counsel's performance was objectivelyunreasonable; and (2) the deficient performance 

### prejudiced the defense. State v. Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722,

17No. 72032-5-1/18 (1986) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Courtney bears the burden of proving both prongs and failure to establish either defeats the ineffective assistance ofcounsel claim. Id.

at 418.

### With respectto the first prong, Courtney notes that trial counsel did not 

### interview any ofthe loss prevention officers, police officers, or store employees involved in this case and, consequently, "could not put on any kind ofmeaningful defense as to what took place outside the store." Statement ofadditional grounds at 6. But because the extent ofdefense counsel's pretrial investigation concerns matters outside the record, we decline to considerthe issue on direct appeal. 

### Courtney also argues thattrial counsel was deficientin failing to move for dismissal based on speedy trial violations. Butthere is nothing in the record to 

### support Courtney's claims that his right to a speedytrial was violated. Absent any 

### objectionable basis, trial counsel's allegedfailure to object cannot be deemed deficient performance. Accordingly, we reject Courtney's ineffective assistance of
counsel claim. Reversed and remanded.

WE CONCUR: 

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